4 The record articles

Affirmative Defense Under NESHAP General Provision Requirements

Posted: August 29th, 2012

Author: All4 Staff 

On October 16, 2009, the U. S. District of Columbia Circuit Court (the Fifth Circuit Court) vacated the “Startup, Shutdown, and Malfunction (SSM) exemption” allowed under the General Provisions in Part 63, Subpart A of the National Emission Standards for Hazardous Air Pollutants (NESHAP).  Under the vacated SSM exemption provisions, an affected source was required to minimize emissions during SSM events, but the exemption did not require the affected source to comply with the specific emission limits as provided for in the relevant NESHAP Subpart.  Now, unless the source specific NESHAP rule provides for separate emission limits during startup and during shutdown, the standard emission limits apply at all times, even during SSM events.  Check out John Egan’s previous 4 The Record article on the vacatur of the SSM exemption for more information.

While certain NESHAP rules issued or revised since the vacatur occurred now included separate standards for startups and shutdowns, malfunctions are treated differently because they are unplanned events.   Malfunction, as defined under 40 CFR Part 63, Section 63.2, means “any sudden, infrequent, and not reasonably preventable failure of air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or usual manner which causes, or has the potential to cause, the emission limitations in an applicable standard to be exceeded. Failures that are caused in part by poor maintenance or careless operation are not malfunctions.”  Unplanned shutdowns could qualify as malfunctions.

In NESHAP rules that have been issued since the SSM vacatur occurred, U.S. EPA has provided provisions for an affirmative defense to civil penalties for exceedances of emission limits or other violations caused by the malfunctions.  U.S. EPA has inserted the affirmative defense language into rules to ensure adequate compliance while simultaneously recognizing that despite the most diligent efforts, emission limits may be exceeded under circumstances beyond the control of the source (i.e., malfunctions do actually occur).  Typically, if a malfunction occurs that causes emission limits to be exceeded, the source can use the affirmative defense to avoid prosecution for a violation of its operating permit or other enforceable federal rules if the source properly notifies the Administrator (EPA or delegated authority).  Proper notification requires that an initial notification of the exceedances be made by telephone or fax as soon as possible but not later than two business days after the initial occurrence of the malfunction.  Also, a written report must be sent to the Administrator within 30 days of the initial occurrence of the exceedance of the standard and the report must include the following related information that:

  1. Demonstrates that the excess emissions were caused by a sudden, short, infrequent, and unavoidable failure of air pollution control or monitoring equipment, process equipment, or by a failure of a process to operate in a normal or in an unusual manner;
  2. Shows that repairs to the equipment were made as expeditiously as possible;
  3. Indicates what steps have been taken to minimize the frequency, amount, and duration of the excess emissions;
  4. Proves that excess emissions could not have been prevented through reasonable measures or planned for;
  5. Shows that the malfunction(s) were not part of a recurring pattern;
  6. Shows any bypass of controls was unavoidable;
  7. Shows that all emissions monitoring and control systems were in operation, if possible;
  8. Documents all actions taken to minimize emissions;
  9. Demonstrates the affected source operated in a manner consistent with good air pollution control practices; and
  10. Includes a written root cause analysis to determine, correct, and eliminate the causes of the malfunction.

Excess emissions resulting from malfunctions must be also be reported in semiannual reports, along with details of the malfunction event including a description of actions taken by an owner or operator to minimize emissions during a malfunction of an affected source.  The semiannual report must also include actions taken by the owner or operator of the source to correct the malfunction.

Most recently the Fifth Circuit Court affirmed a U.S. EPA action on Affirmative Defense with regard to a ruling on the provisions of the State of Texas’s State Implementation Plan (SIP).  In its finding the court re-affirmed, in part, the basis for its 2009 vacatur of the SSM exemption and how the U.S. EPA’s decision on Texas’s SIP conformed to the court’s opinion.  In that action, the U.S. EPA approved portions of Texas’s SIP and disapproved other portions on Affirmative Defense.  On July 30, 2012, the Fifth Circuit Court issued an opinion finding that the U.S. EPA was within its authority to approve in part and to disapprove in part the most recent revisions to the SIP that Texas had submitted to U.S. EPA in 2006.  U.S. EPA’s action allows an affirmative defense for unplanned SSM events, but it disapproved the portion of the Texas SIP revision providing an affirmative defense against civil penalties for planned SSM events.

The Fifth Circuit Court found that U.S. EPA’s decision to approve the affirmative defense for unplanned SSM events was in keeping with the Federal Clean Air Act (CAA).  The court’s opinion found that the CAA does authorize defenses that “”are ‘narrowly tailored’ to address unavoidable, excess emissions . . . [which] give the states the necessary flexibility to ensure that they remain in compliance . . . while still accounting for unplanned unavoidable events.””  The Fifth Circuit Court agreed with the U.S. EPA decision to disapprove the affirmative defense for planned SSM events, citing the U.S. EPA’s statements that “”its long standing position . . . that planned maintenance activities are predictable events”” and as such, are not appropriate to provide an affirmative defense for excess emissions during such events.

While this recent important decision by the Fifth Circuit Court reaffirms many of the parts of the court’s 2009 vacature and supports how the U.S. EPA has been crafting new source specific regulatory provisions since the court vacature, Texas and other states are considering what planned SSM activities other than scheduled maintenance that still may be able to benefit from an affirmative defense.  Activities related to planed SSM events dealing with industry actions other than planned maintenance could possibly be addressed in a state’s permitting regulations and approved SIP to provide for an affirmative defense.

Prepare to document as much as you can about the malfunction event including any evidence that permitted emission limits were not exceeded.  The importance of pre-planning for the collection of process and emissions information during possible malfunction events to best estimate emissions should not be overlooked.  The systems that your facility usually depends on to collect emissions and process information to meet state and federal regulatory requirements are likely to be offline or not provide certified emissions data during the malfunction event.  It is imperative that you determine before malfunction events happen, how you would make an alternate demonstration that the source is still operating within permitted limits, or at a minimum provide an estimate of the emissions level emitted during the malfunction event.  This preplanning is critical to providing a good affirmative defense.

The evidence should be as compelling as possible, but does not necessarily need to be from an approved emissions monitoring system.  After each malfunction event, a thorough review should be conducted to determine what can be done to prevent a recurrence of the same type of event in the future.  Any new preventative measures determined from such review should be incorporated into the source’s SSM plan.  It is equally important that the facility have written procedures for addressing each of the information sections required for the 30-day report. All staff involved with environmental compliance should be well familiar with the facility’s SSM plan.  Also, periodic training, revision of the plan, and review by legal counsel are important.  Reviewing legal actions taken by U.S. EPA for other facility reported malfunctions can also be very helpful in pre-planning for the event of malfunctions that may occur at your facility.

While it is not possible to identify all of the possible malfunction situations that may occur at your facility, you can be certain that eventually a malfunction will happen.  Developing a specific plan to address the core elements of an affirmative defense is simply smart planning.  Now is the time to prepare an SSM plan if it does not already exist, or to review and update your aging SSM plans to assure that you can meet all of the necessary elements of a good affirmative defense. Please note that while an SSM Plan is no longer specifically required by regulation, it is essential to have a plan of action in the event of SSM operating situations that could possibly result in an excursion.  Such forward planning will be invaluable if for no other reason than to provide the best legal defense possible.

Please contact ALL4’s John Slade at 610.933.5246 x36 or jslade@all4inc.com with any questions relating to affirmative defense.


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